Raymond v. Renew Therapeutic Massage, Inc.

1

MARIE RAYMOND, Plaintiff/Counter-Defendant, v. RENEW THERAPEUTIC MASSAGE, INC. et al. Defendants/Counter-Plaintiffs.

CIVIL No. 18-13760

United States District Court, E.D. Michigan, Southern Division

October 28, 2022

OPINION AND ORDER GRANTING DEFENDANT/COUNTER- PLAINITFFS' MOTION IN LIMINE (ECF NO. 44) AND GRANTING PLAINTIFF/COUNTER-DEFENDANT'S MOTION IN LIMINE (ECF NO 45)

LINDA V. PARKER U.S. DISTRICT JUDGE

On December 4, 2018, Plaintiff Marie Raymond (“Raymond”) filed this action claiming that Renew Therapeutic Massage, Inc., Renew Therapeutic Massage, LLC and Natalie Catt (collectively “Renew”), violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C § 201 et seq., by failing to pay overtime compensation for hours worked beyond 40 hours per week and misclassifying her as an independent contractor. (ECF No. 1.) On February 5, 2019, Renew filed a Counter Claim alleging that Raymond violated restrictive covenants within a written agreement not to solicit Renews' clients. (ECF No. 6.) On February 20, 2020, Renew filed a Motion for Summary Judgment (ECF No. 21) that was later withdrawn by stipulation (ECF No. 32) and re-filed on January 8, 2021. (ECF No. 33.) On the same day, Raymond also filed her Motion for Summary Judgment. (ECF No. 34.) On March 18, 2022, the Court issued an “Opinion and Order (1) Denying Plaintiff/Counter-Defendant's Motion for Summary Judgment and (2) Granting in Part and Denying in Part Defendants'/Counter-Plaintiffs' Motion for Summary Judgment.” (ECF No. 39.) Specifically, the court dismissed Raymond's claim of intentional infliction of emotional distress. (Id.)

This matter is presently before the Court on Renews' Motion in Limine seeking to exclude evidence, references, testimony, or argument relating to Defendants' delayed payments of Plaintiff's final paycheck. (ECF No. 44.) Also, this matter is presently before the Court on Raymond's Motion in Limine seeking to exclude evidence or testimony related to advice of counsel regarding Renews' classification of Raymond as an independent contractor and not a W-2 employee, except for evidence related to Ms. Catt's deposition testimony that Renew was told to convert its independent contractors to employees. (ECF No. 45.) The motions are fully briefed. (ECF Nos. 46, 47.)

For the reasons that follow, the Court is granting Renews' Motion in Limine and granting Raymond's Motion in Limine.

Background

In the Complaint, Raymond alleges the following claims: (1) Renew violated the FLSA when it misclassified her as an independent contractor; (2) Renew failed to pay her overtime compensation up to three years prior to the initiation of the lawsuit; and (3) as a result, caused Raymond to suffer severe and serious emotional distress. (ECF No. 1 at Pg ID 7-8, ¶¶ 47-53.) During the final pretrial conference and again at the subsequent status conference, Raymond's counsel represented to the Court that Renew withheld Raymond's final paycheck for approximately eighteen (18) months before eventually providing payment. According to Renew, in order to compensate Raymond for her delay, Renew not only provided Raymond with the pay check but also paid interest on her earnings. (ECF No. 44 at Pg ID 1442.)

Additionally, during the pretrial conference, Renews' counsel represented that he intended to defend against Raymond's FLSA claims and damages by using the advice of counsel defense. According to Raymond, during a deposition on May 23, 2019, Ms. Catt admitted that she was advised by her legal counsel (Chad Kotbra) that she needed to convert her independent contractors to W-2 employees (N. Catt Dep., Ex. 2, ECF No. 45-2 at Pg ID 1484.) However, when asked further about Mr. Kotbra's advice, Renew asserted the attorney-client privilege.

Legal Standard

“A motion in limine is ‘any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.'” Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Prior to the commencement of trial, this District notes that motions in limine serve the following purposes:

[To] (i) facilitate trial preparation by providing information pertinent to strategic decisions; (ii) reduce distractions during trial and provide for a smoother presentation of evidence to the jury; (iii) enhance the possibility of settlement of disputes without trial; (iv) provide some additional insulation of the jury from prejudicial inadmissible evidence; and (v) improve the conditions under which the trial judge must address evidence issues by reducing the need for hasty decisions during the heat of trial.

Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., No. 13-CV-11544, 2015 WL 4934628, at *2 (E.D. Mich. Aug. 18, 2015) (citing Figgins v. Advance Am. Cash Advance Centers of Michigan, Inc., 482 F.Supp.2d 861, 865 (E.D. Mich. 2007).

A district court's ruling on such a motion is “a preliminary, or advisory, opinion that falls entirely within the discretion of the district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38 (1984)). District courts have “broad discretion” over matters involving the admissibility of evidence at trial. United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006) (quotations and citation omitted).

“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce, 469 U.S. at 41 n.4.

As an initial step, when analyzing admissibility, a court must consider whether the evidence is relevant. Under the Federal Rules of Evidence, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. The Sixth Circuit emphasizes that the threshold for determining the relevancy of evidence is low. See United States v. Lang, 717 Fed.Appx. 523, 530 (6th Cir. 2017) (stating that “evidence is relevant if it ‘advance[s] the ball' one inch”) (quoting Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir. 2009) (describing the relevance standard as “extremely liberal”)). “[E]ven if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth.” United States v. Whittington, 455 F.3d 736, 738-39 (6th Cir. 2006) (citation omitted).

In contrast, irrelevant evidence is not admissible. Fed.R.Evid. 402. Further, a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403; see also Robinson v. Runyon, 149 F.3d 507, 514-15 (6th Cir. 1998) (Evidence is inadmissible “if there is a danger of unfair prejudice, not mere prejudice.” (emphasis in original). “District courts enjoy ‘broad discretion' in making the prejudice determination.” United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018) (quoting United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004)).

Renews' Motion in Limine

Renew maintains that the evidence and arguments related to Raymond's last paycheck is irrelevant because it does not support her FLSA claim. In response, Raymond maintains that the delayed check is relevant because (1) it is evidence of a violation of the FLSA for a failure to pay Raymond a minimum wage for her work and (2) it is probative to “willfulness” in support for her liquidated damages calculations. (Pls. Resp., ECF No. 46 at Pg ID 1494.) First, Raymond points to the FLSA statute noting that “[t]he FLSA requires . . . employers to pay employee . . a wage consistent with the minimum wage,” to support her argument that evidence of the delayed check is relevant, (Id.), yet in her Complaint, does not allege a minimum wage violation. Specifically, the Complaint alleges that “Defendants violated the law by misclassifying Plaintiff as an independent contractor, resulting in Plaintiff suffering unpaid wages and loss of employee benefits, and illegal tax treatment of her pay.” (ECF No. 1 at Pg ID 2.) The Complaint later details exactly what the unpaid wages were that Raymond alleges: “Defendants failure to pay Plaintiff overtime compensation at 11/2 times her regular rate of pay owed to her during the three-year period preceding the filing of this Complaint violates the FLSA, 29 U.S.C. §207.” (Id. at Pg ID 7, ¶4.) As such, the Court is not convinced of the relevance of a delayed paycheck to support claims that Raymond never asserted.

Next Raymond's argument that the evidence of the delayed check is probative of Renews' alleged “willfulness” to violate the FLSA, and is therefore relevant, is unsupported. Evidence of the 18-month delay in paying Raymond the final paycheck, albeit an inexcusably long delay, amounts to nothing more than a delay in payment. The Court does not agree that this is relevant to show that Renew “willfully” sought to not pay Raymond overtime pay. Admitting the evidence of the 18-month delay of a paycheck would not provide “any tendency to make a fact more or less probable” as it relates to Raymond's remaining claims. In other words, nothing about the delay, or even the alleged withholding of the check, would be relevant to a determination of whether an employee-employer relationship existed between Raymond and Renew, or whether Raymond worked more than 40 hours per week to be entitled to overtime compensation. Further, if a delay in receiving...